Upholding People's Rights under the Constitution

Monday, August 27, 2007

Letter to the Attorney-General for FOI request

I refer to your letter of 22 November 2006, in which you advised me “The decision about intervention involves a technical assessment of the constitutional significance of the proceeding”.

FOI request

Subsequently, I request to accessing the “technical assessment of the constitutional significance of the proceeding” (or the reasons of the decision) and the decision-making policy under the Freedom of Information Act 1982 (the FOI Act).

However on 30 July 2007 Ms Sheedy, the assistant secretary of Information Law Branch of your department, in her internal review decision, informed me to the affect that no such “technical assessment of the constitutional significance of the proceeding” (or the reasons of the decision) and the decision-making policy exist except legal advices exempted under the FOI Act. Ms Sheedy’s letter is attached.

No reasons for not intervening in the proceeding

In my application for review I particularly refer to Section 13.4 of the Freedom of Information Memorandum no 98 - Exemption Sections In The FOI Act, which specifically clarifies “In Bennett v Australian Customs (D501) the Full Court of the Federal Court held that disclosure of the conclusions provided in legal advice, even without disclosure of the reasoning supporting those conclusions, could still result in an implied waiver of privilege if disclosure included the effect of the legal advice”. The Full Court states: “The voluntary disclosure of the gist or conclusion of the legal advice amounts to waiver in respect of the whole of the advice to which reference is made including the reasons for the conclusion” (par 65 of Bennett v Australian Customs).

I should not doubt Ms Sheedy is a competent reviewer. I should accept her conclusion, to the effect that the legal advice given by the Australian Government Solicitor’s letter of 27 April 2006 did not conclude that you had no reason to intervene in the matter. Put another way Ms Sheedy has found to the effect that there is no such “technical assessment of the constitutional signification of the proceeding”, as advised in your letter of 22 November 2006, which could lead to the conclusion of not intervening in the proceeding, and no reasons for decision of not intervening in the matter.

No decision-making policy

Section 9(1)(a) of the FOI Act provides:

“Certain documents to be available for inspection and purchase

(1) This section applies, in respect of an agency to documents that are provided by the agency for the use of, or are used by, the agency or its officers in making decisions or recommendations, under or for the purposes of an enactment or scheme administered by the agency, with respect to rights, privileges or benefits, or to obligations, penalties or other detriments, to which persons are or may be entitled or subject, being:

(a) manuals or other documents containing interpretations, rules, guidelines, practices or precedents including, but without limiting the generality of the foregoing, precedents in the nature of letters of advice providing information to bodies or persons outside the Commonwealth administration”;

Ms Sheedy has only found a “Submission entitled ‘Constitutional litigation: arrangements for intervention and removal’” falls “within the ambit” of my request. On face of the document it is a procedure guide for constitutional intervention. There are no guidelines or criterion for the “technical assessment of the constitutional significance” in the disclosed parts of the document.

The document mentions: “Except in special circumstances, a decision is made against intervention if the case involves the application of settled principles of constitutional law to the particular facts or legislation”. However both the High Court and you did not advise us that our “case involves the application of settled principles of constitutional law to the particular facts or legislation”.

The document also mentions: “special circumstances may warrant a recommendation to intervene even where the case raise no significant issue of constitutional policy”; and “1. that intervention and removal necessarily involve significant and sometimes competing policy questions which should be decided personally by the Attorney-General; and 2. that significant policy issues will be raised with you even where intervention is not recommended”.

Conclusion

Something must be wrong. Otherwise, how can you assert that there is “a technical assessment of the constitutional significance” (which could lead to the conclusion of not intervening in the proceeding), but your staffs could not find it? and how can there be no decision-making policy for 78B notices, which “are received on an almost daily basis”?

Obviously, you have failed to tell me the truth, but may be able to investigate and find the truth.

Further, under the FOI Act, I request to disclosing the information, in terms of, whether the matter had been raised to you and whether you had “decided personally” not intervening the matter.(files below are downloadable as .jpg files)